RESEARCH DISCUSSION PAPER The Limitations of Litigation in Stolen Generations Cases Chris Cunneen and Julia Grix Institute of Criminology, University of Sydney Law School NUMBER 15 AN AIATSIS RESEARCH DISCUSSION PAPER The Limitations of Litigation in Stolen Generations Cases Chris Cunneen and Julia Grix Institute of Criminology, University of Sydney Law School, 173-175 Phillip St, Sydney Research Discussion Paper # 15 First published in 2004 by the Research Section Australian Institute of Aboriginal and Torres Strait Islander Studies GPO Box 553 Canberra ACT 2601 AIATSIS Research publications co-ordinator: Graeme K Ward Their views expressed in this publication are those of the authors and not necessarily those of the Australian Institute of Aboriginal and Tory Strait Islander Studies. Copyright ©AIATSIS Apart from any fear dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part of this publication may be reproduced without the written permission of the publisher. NATIONAL LIBRARY OF AUSTRALIA CATALOGUING-IN-PUBLICATION DATA: Chris Cunneen and Julia Grix The Limitations of Litigation in Stolen Generations Cases ISBN 0 85575 483 4 1. Aboriginal Australians – Children – Government Policy. 2. Aboriginal Australians – Legal status, laws, etc. 3. Aboriginal Australians – Removal. I. Grix, Julia. II. Australian Institute of Aboriginal and Torres Strait Islander Studies. III. Title. (Series: Research discussion paper (Australian Institute of Aboriginal and Torres Strait Islander Studies) ; no. 15). 362.849915 AIATSIS Research Discussion Paper # 15 Abstract ............................................................................................................... 2 1. Introduction .................................................................................................... 3 2. The Applicants and Their Claims ................................................................. 5 Joy Williams ................................................................................................... 5 Alex Kruger and others .................................................................................. 6 Lorna Cubillo and Peter Gunner .................................................................... 7 Christopher Johnson ....................................................................................... 9 Valerie Wenberg Linow ................................................................................. 10 The respondents .............................................................................................. 11 3. The Judicial Response .................................................................................... 11 Constitutional questions ................................................................................. 11 Wrongful imprisonment ................................................................................. 13 Breach of statutory duty ................................................................................. 15 Breach of duty of care: negligence ................................................................. 15 Fiduciary duty ................................................................................................ 19 Damages ......................................................................................................... 20 Crimes compensation tribunals: Linow .......................................................... 22 4. Evidentiary Hurdles: Reconstructing a Colonialist Narrative ................... 23 History, beneficial intent and ‘standards of the time’ .................................... 24 5. Adversarial Court Processes, Credibility and Re-Traumatisation ............ 28 Victim vulnerability ....................................................................................... 30 6. Statute of Limitations ..................................................................................... 32 Statute of limitations defence and reparations ............................................... 35 7. Limitations of Monetary Compensation ...................................................... 36 Inequitable outcomes ...................................................................................... 36 8. The Cost of Litigation .................................................................................... 37 9. Failure to Deal with Underlying Issues Relevant to Removal .................... 38 Undisclosed settlements ................................................................................. 39 Underlying problem of race-based removal and the harms caused by or after removal .......................................................................................... 40 10. The Need for Reparations ............................................................................ 41 References ............................................................................................................ 43 AIATSIS Research Discussion Paper No. 15 1 Abstract The purpose of this Discussion Paper is to review the progress of litigation by members of the Stolen Generations before the courts in Australia. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families found that forcible removal breached a range of domestic laws and international human rights standards. Yet, despite this finding, court action by members of the Stolen Generations has been unsuccessful. It is our purpose to consider these failures in more detail. This Discussion Paper sets out the key applicants and their legal claims, followed by the various and, at times, unique difficulties confronting Stolen Generation claimants before the courts. Our analysis is from a socio-legal perspective that places in context the experiences of Indigenous persons who have sought to use the legal system. The major limitations of the litigation process which we identify include the problem of overcoming statutory limitation periods, the difficulty of locating evidence, the emotional and psychological trauma experienced by claimants in the hostile environment of an adversarial court system, the enormous financial cost and time involved, the problem of establishing specific liability for harms that have been caused, and the problem of overcoming the judicial view that ‘standards of the time’ justified removal in the best interests of the child. We conclude by noting the importance of alternative approaches to achieving justice for the Stolen Generations. AIATSIS Research Discussion Paper No. 15 2 1. Introduction1 It is estimated that ten per cent of Indigenous Australian children were removed from their families and communities under state sanctioned policies and removal practices in Australia between 1910 and 1970 (HREOC 1997:18). Today, most Indigenous families continue to be affected in one or more generations by the forcible removal of children during this time (HREOC 1997:37). There has been widespread discussion as to whether litigation initiated by Indigenous persons in response to the harmful consequences of these past practices is capable of leading to a satisfactory resolution for claimants. The purpose of this Discussion Paper is to review the progress of relevant cases brought before the courts in Australia for the purpose of analysing why this litigation has been unsuccessful. These cases will be analysed from a socio-legal perspective that places in context the experiences of those who have sought remedies through the courts. In particular, central to the experiences of Stolen Generation2 claimants is the fact that they are Indigenous persons. As such, their removal and subsequent life stories are mediated by the policies, practices and politics of living within the boundaries of a nation-state built on dispossession, violence, and legal regimes which denied to Indigenous peoples the fundamental rights enjoyed by non-Indigenous Australians. As a consequence, Indigenous Australians remain significantly disadvantaged according to all major social and economic indicators including criminal justice, health, education, housing and employment. In addition, the struggle for the recognition of their collective rights as Indigenous peoples continues to this day. We are also interested in contrasting the limitations of the Stolen Generations’ litigation with the consideration of a more restorative and reconciliatory approach based on a process of reparations for the gross violation of human rights. There is not the space in this Discussion Paper to go into detail of how a reparations tribunal would work, and why it is more likely than litigation to provide a just and expeditious resolution of the issues. These issues have been discussed elsewhere (HREOC 1997; PIAC 2000; SLCRC 2000). We accept that, in line with the findings of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, the systemic removal of Indigenous children from their families constituted a gross violation of human rights (HREOC 1997). In summary, the Inquiry found that the policy of forced removal of Indigenous children was contrary to prohibitions on racial discrimination and genocide, and was contrary to accepted legal principle found in the common law. The removals also led to other forms of criminal victimisation including widespread sexual and physical assault (HREOC 1997:277-278). There has been considerable argument in Australia as to whether the policy of removal constituted